Sidney B. Hale, Jr. v. City of Bonham
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Opinion
ACCEPTED 06-15-00021-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/6/2015 8:24:09 PM DEBBIE AUTREY CLERK
CASE NO. 06-15-00021-CV
IN THE COURT OF APPEALS FILED IN SIXTH APPELLATE DISTRICT 6thTEXARKANA, COURT OF APPEALS TEXAS STATE OF TEXAS 7/7/2015 9:23:00 AM DEBBIE AUTREY ______________________________________________ Clerk SIDNEY B. HALE, JR.
Defendant – Appellant
v.
CITY OF BONHAM
Plaintiff – Appellee ______________________________________________
On Appeal from the 336th Judicial District Court of Fannin County, Texas Cause No. CV-14-41722
____________________________________________
APPELLANT’S BRIEF ______________________________________________
COATS & EVANS, P.C. Gary Linn Evans State Bar No. 00795338 E-mail: evans@texasaviationlaw.com George Andrew Coats State Bar No. 00783846 E-mail: coats@texasaviationlaw.com P.O. Box 130246 The Woodlands, Texas 77393-0246 Telephone: (281) 367-7732 Facsimile: (281 367-8003
ORAL ARGUMENT REQUESTED
i IDENTITY OF PARTIES AND COUNSEL
Appellant: Sidney B. Hale, Jr. (“Mr. Hale”)
Counsel: Gary Linn Evans State Bar No. 00795338 George Andrew Coats State Bar No. 00783846 COATS & EVANS, P.C. Post Office Box 130246 The Woodlands, Texas 77393-0246 (281) 367-7732 (281) 367-8003 FAX
Appellees: City of Bonham (the “City”)
Counsel: Mr. Christopher S. Kilgore Dottie Sheffield HELMS & KILGORE, PLLC 2201 Main Street, Suite 212 Dallas, Texas 75201 Telephone: 972-532-6484 Facsimile: 972-532-6496
Trial Court: Honorable Laurine Blake, Presiding Judge In the 336th Judicial District Court Fannin County, Texas
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL……………………………..………..ii
TABLE OF CONTENTS………………………………………………….………iii
INDEX OF AUTHORITIES……………………………………………………….v
STATEMENT OF THE CASE……………………………………………………xi
ISSUES PRESENTED FOR REVIEW…………………………………………...xii
STATEMENT OF JURISDICTION……………………………………………..xiii
STATEMENT OF FACTS…………………………………………………………1
SUMMARY OF THE ARGUMENT………………………………………………3
ARGUMENT……………………………………………………………………….5
STANDARD OF REVIEW…………………………………………..….5
I. THE CITY IS NOT IMMUNE FROM CLAIMS ARISING OUT OF ITS PROPRIETARY FUNCTIONS………………………………..7 II. THE PROPRIETARY-GOVERNMENTAL DICHOTOMY SHOULD BE APPLIED TO MR. HALE’S CONTRACTUAL AND QUASI-CONTRACTUAL CLAIMS…………………………….10 III. A LEGISLATIVE WAIVER OF IMMUNITY IS NOT NECESSARY WHEN NO IMMUNITY EXISTS……………………..15 IV. BECAUSE THE CITY WAS ENGAGED IN A PROPRIETARY FUNCTION, THE TEXAS TORT CLAIMS ACT DOES NOT APPLY…………………………………………………....19 V. ALTERNATIVELY, EVEN IF THE TEXAS TORT CLAIMS ACT APPLIES TO THE PRESENT CASE, THE STATUTE PROVIDES A LIMITED WAIVER OF IMMUNITY UNDER THE FACTS OF THE PRESENT CASE……...24 VI. THE TRIAL COURT’S FAILURE TO ALLOW MR. HALE THE OPPORTUNITY TO CONDUCT DISCOVERY AND/OR AMEND HIS COUNTERCLAIM IS REVERSIBLE ERROR…………………..30
iii PRAYER……………………………………………………………………….…36
CERTIFICATE OF COMPLIANCE……………………………………………...37
CERTIFICATE OF SERVICE……………………………………………………38
APPENDIX……………………………………………………………………….39
iv INDEX OF AUTHORITIES
CASES
Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex. 1972)…………..…..27
Austin & N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403 (Tex. 1903)……….…..30
Bailey v. City of Austin, 972 S.W.2d 180 (Tex. App.—Austin 1998, pet. denied)………………………………………………………………...7, 8, 21
Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Property/Casualty Joint Self-Insurance Fund, 212 S.W.3d 320 (Tex. 2006)………………………………………………………………………..16
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)………………………5
Casso v. City of McAllen, No. 13-08-00618, 2009 Tex.App. LEXIS 2049, 2009 WL 781863 (Tex.App.—Corpus Christi Mar. 26, 2009, pet. denied) mem. op.)……………………………………..………….........13
City of Corpus Christi v. Absolute Industries, 120 S.W.3d 1 (Tex.App.— Corpus Christi 2001, pet. denied)…………………………………………..20
City of Corpus Christi v. Continental Bus Systems, Inc., 445 S.W.2d 12 (Tex. Civ. App.—Austin 1969, writ ref’d n.r.e.)……………………………7
City of Crystal City v. Crystal City Country Club, 486 S.W.2d 887 (Tex. Civ. App.—Beaumont 1972, writ ref’d n.r.e.)………………………………7
City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392 (Tex. App.—Dallas 2002, pet. filed)……………………………………………………...……..25
City of Del Rio v. Felton, No. 04-06-00091-CV, 2007 Tex. App. LEXIS 660, (Tex.App.—San Antonio 2007, no pet.)………………………………...…28
City of El Paso v. Bernal, 986 S.W.2d 610 (Tex. 1999)………………………….33
v City of El Paso v. Chacon, 148 S.W.3d 417 (Tex. App.—El Paso 2004, pet. denied)………………………………………………………………….33, 34
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)………………………..17
City of El Paso v. Morales, No. 08-02-00484-CV, 2004 Tex. App. LEXIS 7806, (Tex. App.—El Paso Aug. 20, 2004, pet. denied)…………...20, 21, 26
City of Elsa v. Gonzalez, 325 S.W.3d 622 (Tex. 2010)…………………………….6
City of Galveston v. Albright, No. 14-04-00072-CV, 2004 Tex. App. LEXIS 9693, (Tex.App.—Houston [14th Dist.] Nov. 2, 2004, no pet.)…….....26, 27
City of Galveston v. Posnainsky, 62 Tex. 118 (1884)………….9, 10, 14, 15, 21, 22
City of Georgetown v. Lower Colorado River Authority, 413 S.W.3d 803 (Tex.App.—Austin 2013, pet. dism’d)..…….9, 10, 11, 12, 13, 14, 15, 16, 17
City of Gladewater v. Pike, 727 S.W.2d 514 (Tex. 1987)…………………...7, 8, 21
City of Houston v. Cogburn, No. 01-11-00318-CV, 2013 Tex. App. LEXIS 2827, (Tex. App.—Houston [1st Dist.] Mar. 19, 2013, no pet.)…….……..27
City of Houston v. Rushing, 39 S.W.3d 685 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)………………………………………………….…..19, 20
City of Midland v. Sullivan, 33 S.W.3d 1 (Tex.App.—El Paso 2000, pet. dism'd w.o.j.)……………………………………………………………….26
City of San Antonio v. Wheelabrator Air Pollution Control, Inc., 381 S.W.3d 597 (Tex.App.—San Antonio 2012, pet. denied)…………..……..11
City of Texarkana v. City of New Boston, 141 S.W.3d 778 (Tex. App.— Texarkana 2004, pet. denied)……………………………………………..8, 9
City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997)…………………………19, 20
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000)………………………...28
vi Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983)…………………….27
Cont. Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996)……………...1, 5
County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002)………………………32
County of Harris v. Eaton, 573 S.W.2d 177 (Tex. 1978)……………………32, 33
Denton County v. Beynon, 283 S.W.3d 329 (Tex. 2009)…………………………33
East Houston Estate Apartments, LLC v. City of Houston, 294 S.W.3d 723 (Tex.App.—Houston [1st Dist.] 2009, no pet.)…………………………….11
Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831 (Tex. 2000)……………………………………………………………………19, 20
Gates v. City of Dallas, 704 S.W.2d 737 (Tex. 1986)……………………..….10, 12
Gates v. Pitts, 291 S.W. 948 (Tex. Civ. App.-Amarillo 1927, no writ)…………..31
Gen. Elec. Co. v.
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ACCEPTED 06-15-00021-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/6/2015 8:24:09 PM DEBBIE AUTREY CLERK
CASE NO. 06-15-00021-CV
IN THE COURT OF APPEALS FILED IN SIXTH APPELLATE DISTRICT 6thTEXARKANA, COURT OF APPEALS TEXAS STATE OF TEXAS 7/7/2015 9:23:00 AM DEBBIE AUTREY ______________________________________________ Clerk SIDNEY B. HALE, JR.
Defendant – Appellant
v.
CITY OF BONHAM
Plaintiff – Appellee ______________________________________________
On Appeal from the 336th Judicial District Court of Fannin County, Texas Cause No. CV-14-41722
____________________________________________
APPELLANT’S BRIEF ______________________________________________
COATS & EVANS, P.C. Gary Linn Evans State Bar No. 00795338 E-mail: evans@texasaviationlaw.com George Andrew Coats State Bar No. 00783846 E-mail: coats@texasaviationlaw.com P.O. Box 130246 The Woodlands, Texas 77393-0246 Telephone: (281) 367-7732 Facsimile: (281 367-8003
ORAL ARGUMENT REQUESTED
i IDENTITY OF PARTIES AND COUNSEL
Appellant: Sidney B. Hale, Jr. (“Mr. Hale”)
Counsel: Gary Linn Evans State Bar No. 00795338 George Andrew Coats State Bar No. 00783846 COATS & EVANS, P.C. Post Office Box 130246 The Woodlands, Texas 77393-0246 (281) 367-7732 (281) 367-8003 FAX
Appellees: City of Bonham (the “City”)
Counsel: Mr. Christopher S. Kilgore Dottie Sheffield HELMS & KILGORE, PLLC 2201 Main Street, Suite 212 Dallas, Texas 75201 Telephone: 972-532-6484 Facsimile: 972-532-6496
Trial Court: Honorable Laurine Blake, Presiding Judge In the 336th Judicial District Court Fannin County, Texas
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL……………………………..………..ii
TABLE OF CONTENTS………………………………………………….………iii
INDEX OF AUTHORITIES……………………………………………………….v
STATEMENT OF THE CASE……………………………………………………xi
ISSUES PRESENTED FOR REVIEW…………………………………………...xii
STATEMENT OF JURISDICTION……………………………………………..xiii
STATEMENT OF FACTS…………………………………………………………1
SUMMARY OF THE ARGUMENT………………………………………………3
ARGUMENT……………………………………………………………………….5
STANDARD OF REVIEW…………………………………………..….5
I. THE CITY IS NOT IMMUNE FROM CLAIMS ARISING OUT OF ITS PROPRIETARY FUNCTIONS………………………………..7 II. THE PROPRIETARY-GOVERNMENTAL DICHOTOMY SHOULD BE APPLIED TO MR. HALE’S CONTRACTUAL AND QUASI-CONTRACTUAL CLAIMS…………………………….10 III. A LEGISLATIVE WAIVER OF IMMUNITY IS NOT NECESSARY WHEN NO IMMUNITY EXISTS……………………..15 IV. BECAUSE THE CITY WAS ENGAGED IN A PROPRIETARY FUNCTION, THE TEXAS TORT CLAIMS ACT DOES NOT APPLY…………………………………………………....19 V. ALTERNATIVELY, EVEN IF THE TEXAS TORT CLAIMS ACT APPLIES TO THE PRESENT CASE, THE STATUTE PROVIDES A LIMITED WAIVER OF IMMUNITY UNDER THE FACTS OF THE PRESENT CASE……...24 VI. THE TRIAL COURT’S FAILURE TO ALLOW MR. HALE THE OPPORTUNITY TO CONDUCT DISCOVERY AND/OR AMEND HIS COUNTERCLAIM IS REVERSIBLE ERROR…………………..30
iii PRAYER……………………………………………………………………….…36
CERTIFICATE OF COMPLIANCE……………………………………………...37
CERTIFICATE OF SERVICE……………………………………………………38
APPENDIX……………………………………………………………………….39
iv INDEX OF AUTHORITIES
CASES
Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex. 1972)…………..…..27
Austin & N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403 (Tex. 1903)……….…..30
Bailey v. City of Austin, 972 S.W.2d 180 (Tex. App.—Austin 1998, pet. denied)………………………………………………………………...7, 8, 21
Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Property/Casualty Joint Self-Insurance Fund, 212 S.W.3d 320 (Tex. 2006)………………………………………………………………………..16
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)………………………5
Casso v. City of McAllen, No. 13-08-00618, 2009 Tex.App. LEXIS 2049, 2009 WL 781863 (Tex.App.—Corpus Christi Mar. 26, 2009, pet. denied) mem. op.)……………………………………..………….........13
City of Corpus Christi v. Absolute Industries, 120 S.W.3d 1 (Tex.App.— Corpus Christi 2001, pet. denied)…………………………………………..20
City of Corpus Christi v. Continental Bus Systems, Inc., 445 S.W.2d 12 (Tex. Civ. App.—Austin 1969, writ ref’d n.r.e.)……………………………7
City of Crystal City v. Crystal City Country Club, 486 S.W.2d 887 (Tex. Civ. App.—Beaumont 1972, writ ref’d n.r.e.)………………………………7
City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392 (Tex. App.—Dallas 2002, pet. filed)……………………………………………………...……..25
City of Del Rio v. Felton, No. 04-06-00091-CV, 2007 Tex. App. LEXIS 660, (Tex.App.—San Antonio 2007, no pet.)………………………………...…28
City of El Paso v. Bernal, 986 S.W.2d 610 (Tex. 1999)………………………….33
v City of El Paso v. Chacon, 148 S.W.3d 417 (Tex. App.—El Paso 2004, pet. denied)………………………………………………………………….33, 34
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)………………………..17
City of El Paso v. Morales, No. 08-02-00484-CV, 2004 Tex. App. LEXIS 7806, (Tex. App.—El Paso Aug. 20, 2004, pet. denied)…………...20, 21, 26
City of Elsa v. Gonzalez, 325 S.W.3d 622 (Tex. 2010)…………………………….6
City of Galveston v. Albright, No. 14-04-00072-CV, 2004 Tex. App. LEXIS 9693, (Tex.App.—Houston [14th Dist.] Nov. 2, 2004, no pet.)…….....26, 27
City of Galveston v. Posnainsky, 62 Tex. 118 (1884)………….9, 10, 14, 15, 21, 22
City of Georgetown v. Lower Colorado River Authority, 413 S.W.3d 803 (Tex.App.—Austin 2013, pet. dism’d)..…….9, 10, 11, 12, 13, 14, 15, 16, 17
City of Gladewater v. Pike, 727 S.W.2d 514 (Tex. 1987)…………………...7, 8, 21
City of Houston v. Cogburn, No. 01-11-00318-CV, 2013 Tex. App. LEXIS 2827, (Tex. App.—Houston [1st Dist.] Mar. 19, 2013, no pet.)…….……..27
City of Houston v. Rushing, 39 S.W.3d 685 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)………………………………………………….…..19, 20
City of Midland v. Sullivan, 33 S.W.3d 1 (Tex.App.—El Paso 2000, pet. dism'd w.o.j.)……………………………………………………………….26
City of San Antonio v. Wheelabrator Air Pollution Control, Inc., 381 S.W.3d 597 (Tex.App.—San Antonio 2012, pet. denied)…………..……..11
City of Texarkana v. City of New Boston, 141 S.W.3d 778 (Tex. App.— Texarkana 2004, pet. denied)……………………………………………..8, 9
City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997)…………………………19, 20
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000)………………………...28
vi Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983)…………………….27
Cont. Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996)……………...1, 5
County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002)………………………32
County of Harris v. Eaton, 573 S.W.2d 177 (Tex. 1978)……………………32, 33
Denton County v. Beynon, 283 S.W.3d 329 (Tex. 2009)…………………………33
East Houston Estate Apartments, LLC v. City of Houston, 294 S.W.3d 723 (Tex.App.—Houston [1st Dist.] 2009, no pet.)…………………………….11
Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831 (Tex. 2000)……………………………………………………………………19, 20
Gates v. City of Dallas, 704 S.W.2d 737 (Tex. 1986)……………………..….10, 12
Gates v. Pitts, 291 S.W. 948 (Tex. Civ. App.-Amarillo 1927, no writ)…………..31
Gen. Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008)………………………27, 28
Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001)……………………………………………………………………….19
Gentry v. Bowser, 21 S.W. 569 (Tex. Civ. App.—Fort Worth 1893, no writ)……………………………………………………………………..31
Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636 (Tex.App.— Houston [1st Dist.] 2005, pet. denied)……………………………………..28
Harris Cty. v. Sykes, 136 S.W.3d 635 (Tex. 2004)………………………………...5
Hosner v. De Young, 1 Tex. 764 (Tex. 1847)……………………………………..30
Klumb v. Houston Mun. Emples. Pension Sys., 458 S.W.3d 1 (Tex. 2015)………..6
Lamar Univ. v. Doe, 971 S.W.2d 191 (Tex.App.—Beaumont 1998, no pet.)……26
vii Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901 (Tex. App.— Houston [14th Dist.] 2009, no pet.)………………………………………27
Nueces County v. San Patricio County, 246 S.W.3d 651 (Tex. 2008)……………17
Peek v. Equip. Serv. Co., 779 S.W.2d 802 (Tex. 1989)…………………………5, 6
Perez v. City of Dallas, 180 S.W.3d 906 (Tex.App.—Dallas 2005, no pet.)…………………………………………………………………………26
Perez v. DNT Global Star, L.L.C., 339 S.W.3d 692 (Tex.App.—Houston [1st Dist.] 2011, no pet.)…………………………………………………...27
Sanroc Co. Int’l v. Roadrunner Transp., Inc., 596 S.W.2d 320 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ)…………………………….14
State v. $281,420.00 in U.S. Currency, 312 S.W.3d 547 (Tex. 2010)……………14
State v. Lueck, 290 S.W.3d 876 (Tex. 2009)……………………………………….5
State v. Tennison, 509 S.W.2d 560 (Tex. 1974)………………………………26, 28
State v. Woollesen, 93 S.W.3d 910 (Tex. App.—Austin 2002, no pet.)……….....32
State Dep’t of Highways v. Payne, 838 S.W.2d 235 (Tex. 1992)...26, 27, 29, 33, 34
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993)……..….31
Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)..6, 20, 26
Tex. Dep’t. of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999)………………………..5
Tex. DOT v. Jones, 8 S.W.3d 636 (Tex. 1999)……………………………………30
Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002)………………………………………………………………………..31
Tex. River Barges v. City of San Antonio, 21 S.W.3d 347 (Tex. App.—San Antonio 2000, pet. denied)……………………………………………..20, 25 viii Tex. S. Univ. v. Gilford, 277 S.W.3d 65 (Tex.App.—Houston [1st Dist.] 2009, pet. denied)…………………………………………………………..26
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006)………10, 11, 12, 13, 16, 17
Truong v. City of Houston, 99 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2002, no pet.)……………………………………………..8, 21, 22
Turvey v. City of Houston, 602 S.W.2d 517 (Tex. 1980)…………………………..8
Valentin v. Hosp. Bella Vista, 254 F.3d 358 (1st Cir. 2001)……………………...31
Williams v. City of Midland, 932 S.W.2d 679 (Tex.App.—El Paso 1996, no writ)………………………………………………………………21
Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634 (Tex. 1999)……………...28
STATUTES
Tex. Civ. Prac. & Rem. Code § 101.021………………………………………….26
Tex. Civ. Prac. & Rem. Code § 101.021(a)…………………………………28, 29
Tex. Civ. Prac. & Rem. Code §101.021(b)……………………………………….29
Tex. Civ. Prac. & Rem. Code § 101.021(2)……………………..………………..28
Tex. Civ. Prac. & Rem. Code §101.0215…………………………………………20
Tex. Civ. Prac. & Rem. Code §101.0215(a)…………………………………..20, 24
Tex. Civ. Prac. & Rem. Code §101.0215(b)……………………………………...21
Tex. Civ. Prac. & Rem. Code § 101.0215(c)……………………………………...24
ix Tex. Civ. Prac. & Rem. Code § 101.022(a)…………………………………...26, 28
Tex. Civ. Prac. & Rem. Code § 101.022(b)…………………………………32, 33
Tex. Civ. Prac. & Rem. Code § 101.025………………………………………….26
Tex. Loc. Gov’t Code §271.151(2)(A)……………………………………………16
Tex. Loc. Gov’t Code §271.152…………………………………………………..16
x STATEMENT OF THE CASE
Plaintiff-Appellee, The City of Bonham, filed its Petition for Declaratory
Judgment on May 9, 2014 in the 336th Judicial District Court of Fannin County,
Texas. (CR 1:7). On July 7, 2014, Defendant-Appellant, Sidney B. Hale, Jr. filed
his Verified Original Answer, which included his verified denials, affirmative
defenses, and special exceptions. (CR 1:51). On November 12, 2014, Mr. Hale
filed his Original Counterclaims against the City, bringing claims for negligence,
premises defect, breach of contract, promissory estoppel, unjust enrichment,
violations of the Texas Deceptive Trade Practices Act, gross negligence and
bailment. (CR 1:57). The City filed its Motion for Partial Summary Judgment on
November 25, 2015 challenging Mr. Hale’s tort claims under the doctrine of
sovereign immunity. (CR 1:68). The City’s Motion for Partial Summary Judgment
was granted on January 6, 2015. (CR 1:119). The City then filed a second Motion
for Summary Judgment on January 16, 2015 seeking dismissal of Mr. Hale’s
remaining claims, also under the doctrine of sovereign immunity. (CR 1:120). The
City’s Second Motion for Summary Judgment was granted on February 12, 2015.
(CR 1:192). An Order of Dismissal dismissing Plaintiff’s claims for declaratory
relief was entered on February 27, 2015 and is a final and appealable order. (CR
1:197). Mr. Hale filed its Notice of Appeal on March 26, 2015. (CR 1:200).
xi ISSUES PRESENTED FOR REVIEW
I. The Trial Court committed reversible error by holding that the City has sovereign immune from suit for claim arising out of its proprietary functions.
II. The Trial Court committed reversible error by failing to find that the proprietary-governmental dichotomy applies to Appellant’s contractual and quasi-contractual claims.
III. The Trial Court committed reversible error by failing to find that the City was performing proprietary functions, and thus, a Legislative wavier of immunity is not necessary because no immunity exists.
IV. The Trial Court committed reversible error by failing to find that the City was performing proprietary functions, and thus, the Texas Tort Claims Act does not apply.
V. Alternatively, even if the Texas Tort Claims Act applies in the present case, the Trial Court committed reversible error by failing to find that the statute provides a limited waiver of immunity under the facts presented.
VI. The Trial Court committed reversible by failing to allow Appellant the opportunity to conduct discovery and/or amend his counterclaims to affirmatively establish jurisdiction.
xii STATEMENT OF JURISDICTION
The filing of a notice of appeal by any party invokes the appellate court’s
jurisdiction over all parties to the trial court’s judgment or order appealed from.
Tex. R. App. Proc. 25.1(b).
xiii STATEMENT OF FACTS 1
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:
Plaintiff is the owner of a hangar on the grounds of the City of Bonham
Airport (the “Hangar”). (CR 1:59). On or about June 18, 1984, Mr. Hale entered
into a lease agreement with the City for the Hangar (the “Lease”). (CR 1:59; 12-
13). The Lease, by its own terms, expired after five years. Id.
On or about December 8, 2013, the Hangar roof collapsed, causing extensive
damages to the hangar and the property contained therein (the “Incident”). (CR
1:59). The Hangar was used to conduct Mr. Hale’s aircraft repair and maintenance
business and to store multiple aircraft. (CR 1:59).
Prior to the Incident, Mr. Hale informed the City of the observed and
deteriorating condition of the hangar. (CR 1:59). The City, specifically Mr. Ronnie
Ford on behalf of the City, unequivocally instructed Mr. Hale to immediately
vacate the premises and to stay out of the Hangar. (CR 1:59; RR 2:19). There was
a significant likelihood that had the center section of the structure been
supplementally supported at that time, the Hangar would not have collapsed. (CR
1:59). Indeed, it was not until several hours later, after the City’s failure to act that
the Hangar collapsed. (CR 1:59). Such action represents an assumption of 1 Mr. Hale’s counterclaims were dismissed pursuant to what is essentially a Plea to the Jurisdiction. As a result, the merits of Mr. Hale’s counterclaims were not reached by the trial court. No discovery was conducted during the trial court proceedings. In reviewing the plea to the jurisdiction, the court must take all factual allegations plead by Mr. Hale as true. Cont. Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996). 1 complete command and control over the premises, to the complete and total
exclusion of all other persons and entities. (CR 1:59). The City’s failure to
reasonably protect the Hangar from further collapse caused the damages incurred
by Mr. Hale, at least in part. (CR 1:59).
Additionally, the City barred Mr. Hale from the property, which was
saturated with ice and water, for many weeks, during which all sorts of damage
was done to his personal property, including sensitive aviation tools, parts, gauges,
servicing equipment, inventory, and tooling. (CR 1:59).
Following the Incident, an examination of the debris revealed that the apex
bolts that held the top seam of the roof together were extensively corroded,
undersized, and apparently had not been inspected in decades, making the hangar
unsafe for occupancy and/or use. (CR 1:59-60). This presented an unreasonably
dangerous condition which posed an unreasonable risk of harm to Mr. Hale. (CR
1:60). The City was aware of this condition, yet did nothing to make the premises
safe. (CR 1:60).
2 SUMMARY OF THE ARGUMENT
Mr. Hale brought several causes of action against the City in his Original
Counterclaim, including tort claims, contractual claims and quasi-contractual
claims. The trial court below improperly dismissed all of Mr. Hale’s claims on the
basis that the City was afforded sovereign immunity from Mr. Hale’s claims. The
conduct at issue in the present case is based on the City’s proprietary functions,
rather than governmental functions. As a result, the statutes relied upon by the
City, including the Texas Tort Claims Act and Chapter 271 of the Texas Local
Government Code, are inapplicable. The proprietary nature of the City’s conduct
takes Mr. Hale’s claims outside the realm of the statutes relied upon by the City. In
other words, a statutory waiver of sovereign immunity is not required under the
facts of this case, because the City was never afforded immunity under the facts of
this case.
The City, in conducting real estate operations of owning, managing, and
leasing real property was performing proprietary functions. A municipality is not
afforded the protection of sovereign immunity for matters arising from the
performance of their proprietary functions. The governmental functions of a
municipal corporation have been defined as those acts which are public in nature
and performed by the municipality “as the agent of the State in furtherance of
general law for the interest of the public at large.” Proprietary functions, on the
3 other hand, are those functions performed by a city, in its discretion for its own
advantage or emolument, primarily for the benefit of those within the corporate
limit of the municipality.
Alternatively, Mr. Hale requested that the trial court allow sufficient
opportunity for discovery and the opportunity to amend his counterclaims before
ruling on the City’s motions. Mr. Hale’s request was denied by the trial court,
which constitutes reversible error. If the pleadings do not contain sufficient facts to
affirmatively demonstrate the trial court's jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the plaintiff should be afforded the opportunity to amend.
Consequently, Mr. Hale respectfully requests that this Court find that the
City was acting in a proprietary capacity, and as such, is not protected from suit by
sovereign immunity. Mr. Hale further requests that that the orders of the trial court
dismissing Mr. Hale’s counterclaims be reversed and the case remanded to the trial
court for a trial on the merits. Alternatively, or in addition, to the requested relief,
Mr. Hale respectfully requests that the case be remanded to the trial court for
discovery and to allow Mr. Hale an opportunity to amend his counterclaims to
include additional facts to affirmatively demonstrate the trial court’s jurisdiction.
4 ARGUMENT
STANDARD OF REVIEW
Both of the motions for summary judgment filed by the City are essentially
pleas to the jurisdiction, claiming that Mr. Hale’s claims are barred by sovereign
immunity. A plea to the jurisdiction is the proper vehicle by which a party contests
a trial court’s authority to determine the subject matter of a cause of action. State v.
Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Harris Cty. v. Sykes, 136 S.W.3d 635,
639 (Tex. 2004). A governmental unit may properly challenge a trial court’s
subject matter jurisdiction by filing a plea to the jurisdiction since absent the state’s
consent to suit a trial court has no subject matter jurisdiction. Tex. Dep’t. of
Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
A trial court must not weigh the merits of the case, but instead consider only
the pleadings and evidence pertinent to the jurisdictional question. Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). In doing so, the trial court
must construe the pleadings liberally in favor of jurisdiction, Peek v. Equip. Serv.
Co., 779 S.W.2d 802, 804 (Tex. 1989) [emphasis added], and must take all factual
allegations plead as true, unless the governmental unit pleads and proves that the
allegations were fraudulently made in order to confer jurisdiction. Cont. Coffee
Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996). Only, if a party pleads
facts that affirmatively demonstrate an absence of jurisdiction and such defect is
5 incurable, immediate dismissal of the case is proper. Peek, 779 S.W.2d at 804-805.
However, if the pleadings are insufficient to demonstrate the court’s jurisdiction,
but do not affirmatively show incurable defects in jurisdiction, the proper remedy
is to allow the plaintiff an opportunity to amend before dismissing. Id.
On appeal, the court reviews de novo the trial court’s disposition of a plea to
the jurisdiction. Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). In doing so, the appellate court considers the pleadings and factual
assertions, as well as any evidence in the record that is relevant to the jurisdictional
issue. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). Construing the
pleadings liberally in favor of the plaintiffs (here, Mr. Hale), the court looks to the
pleaders’ intent and determine whether the pleaders have alleged facts
affirmatively demonstrating the court’s jurisdiction to entertain the matter. Id.
When a plea to the jurisdiction challenges the existence of jurisdictional facts, the
court considers whether evidence in the record raises a fact issue, and if it does, the
jurisdictional issue must be resolved by the trier of fact. Miranda, 133 S.W.3d at
227-28. Conversely, the trial court must rule on the plea as a matter of law if the
evidence is undisputed or fails to raise a fact question. Id. at 228; Klumb v.
Houston Mun. Emples. Pension Sys., 458 S.W.3d 1, 8 (Tex. 2015).
6 I. THE CITY IS NOT IMMUNE FROM CLAIMS ARISING OUT OF ITS PROPRIETARY FUNCTIONS.
The City of Bonham is a home rule municipal corporation. As such it has
broad powers of self-government. City of Corpus Christi v. Continental Bus
Systems, Inc., 445 S.W.2d 12, 16 (Tex. Civ. App.—Austin 1969, writ ref’d n.r.e.).
Municipal corporations exercise their broad powers through two different roles:
proprietary and governmental. The governmental functions of a municipal
corporation have been defined as those acts which are public in nature and
performed by the municipality “as the agent of the State in furtherance of general
law for the interest of the public at large.” City of Crystal City v. Crystal City
Country Club, 486 S.W.2d 887, 889 (Tex. Civ. App.—Beaumont 1972, writ ref’d
n.r.e.). Proprietary functions are those functions performed by a city, in its
discretion, primarily for the benefit of those within the corporate limit of the
municipality. Id.
Under Texas common law, determining whether a city is performed a
proprietary or governmental function has generally been evaluated by examining
whether the act performed by the city as the agent of the State in furtherance of
general law for the interest of the public at large, or whether it is performed by the
city, in its discretion, primarily for the benefit of those within the corporate limits
of the city, rather than for the use by the general public. See City of Gladewater v. 7 Pike, 727 S.W.2d 514, 519 (Tex. 1987); Bailey v. City of Austin, 972 S.W.2d 180,
192-93 (Tex. App.—Austin 1998, pet. denied). The key difference between a
proprietary and governmental function is that the city functions in its governmental
capacity when it performs functions mandated by the State. Truong v. City of
Houston, 99 S.W.3d 204, 210 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
Here, the City voluntarily engaged in the business of owning and leasing real
estate in and around the Airport. (RR 2:11). This “real estate” aspect of the City is
not a necessary component to the operation of the Airport and is not a function
mandated by the State, but rather a separate and distinct endeavor, and thus, is
purely and completely a proprietary function. (RR 2:11). The trial court’s
cumulative errors commenced with its failure to respect this basic attribution of
what the City does in and around the Airport. The Lease Agreement in this case is
particularly instructive in this regard in that Mr. Hale leased the property at issue
directly from The City of Bonham, rather than the Airport itself (the City of
Bonham Municipal Airport, also known as Jones Field). (CR 1:12-13).
Unlike governmental functions, for which municipal corporations have
traditionally been afforded some degree of governmental immunity, proprietary
functions have subjected municipal corporations to the same duties and liabilities
as those incurred by private persons and corporations. See Turvey v. City of
Houston, 602 S.W.2d 517 (Tex. 1980) [emphasis added]. While the doctrine of
8 governmental immunity protects municipalities from being sued for matters arising
from the performance of their governmental functions, no such protection exists
for municipalities performing their proprietary functions. City of Texarkana v.
City of New Boston, 141 S.W.3d 778, 783 (Tex. App.—Texarkana 2004, pet.
denied) [emphasis added].
Over 125 years ago, the Supreme Court of Texas first considered the extent
to which governmental immunity applies to municipalities. City of Galveston v.
Posnainsky, 62 Tex. 118 (1884). In Posnainsky, a father sued a municipality for
injuries resulting from his minor child’s fall into an uncovered drain on a public
street. Id. at 122-23. The Court held that because the municipality constructed and
maintained the streets for its “own advantage or emolument,” it was not immune
from suit for negligently maintaining those streets. Id. at 131. When a municipality
“exercises powers exclusively public in their character, forced upon it without its
consent, simply because that state can thus, through such local agencies, more
easily and effectively discharge duties essentially its own, it is but proper that no
action should be maintained against” the municipality unless the state has waived
immunity from suit. Id. at 125. However, when municipalities “exercise power not
of this character, voluntarily assumed—powers intended for the private exchange
and benefit of the locality and its inhabitants,—there seems to be no sufficient
reason why they should be relieved from that liability to suit and measure of actual
9 damage to which an individual or private corporation” would be held. Id.; see also
City of Georgetown v. Lower Colorado River Authority, 413 S.W.3d 803, 808-09
(Tex.App.—Austin 2013, pet. dism’d).
Here, the City’s ownership, lease, and management of real estate properties
on the Airport property are voluntarily assumed powers intended for the private
exchange and benefit of its inhabitants. (CR 2:11). Thus, these real estate functions
of the City are proprietary in nature and not subject to sovereign immunity.
II. THE PROPRIETARY-GOVERNMENTAL DICHOTOMY SHOULD BE APPLIED TO MR. HALE’S CONTRACTUAL AND QUASI-CONTRACTUAL CLAIMS
Contracts made by municipal corporations in their proprietary capacity have
been held to be governed by the same rules as contracts between individuals. Gates
v. City of Dallas, 704 S.W.2d 737, 739 (Tex. 1986). Consequently, in the present
case, because the City was engaged in a proprietary function in the ownership and
leasing of real estate, governmental immunity does not apply to Mr. Hale’s
contractual and quasi-contractual claims against the City.
The Supreme Court of Texas, in Tooke v. City of Mexia, recognized that a
municipality is not immune from suit for torts committed in the performance of its
proprietary functions, as it is for torts committed in the performance of its
government functions. 197 S.W.3d 325, 343 (Tex. 2006). Additionally, while the
Court indicated that they have not held that the same distinction determines
10 whether immunity was waived in suits involving breach of contract claims, the
Court also did not indicate that the distinction does not apply. Id. Rather, the Court
determined that it was not necessary to make that determination based on the facts
presented in Tooke. Indeed, the Court held that, “even if the City were not immune
from suit for breach of a contract whose subject lies within its proprietary
functions, the Tooke’s contract does not qualify.” Id. at 344. This leaves the door
open for the Court to make that determination at a later date.
The Texas Tort Claims Act was enacted in 1985, well before the decision
was entered in Tooke. Since the enactment of Section 271.152 of the Local
Government Code in 2005, the Supreme Court has not yet revisited whether or not
the proprietary-governmental dichotomy applicable in tort cases is also applicable
in breach of contract cases. While the Fourth Court of Appeals in San Antonio has
held that this distinction does not apply in contract cases, the decisions of that
Court are persuasive only and certainly not binding on the present court. See City
of San Antonio v. Wheelabrator Air Pollution Control, Inc., 381 S.W.3d 597
(Tex.App.—San Antonio 2012, pet. denied). Conversely, the majority of appellate
courts continue to apply the proprietary-governmental dichotomy to contract
claims. See, e.g., East Houston Estate Apartments, LLC v. City of Houston, 294
S.W.3d 723, 731-32 (Tex.App.—Houston [1st Dist.] 2009, no pet.); City of
Georgetown, 413 S.W.3d at 811.
11 Absent a decision to the contrary by the Supreme Court of Texas, there is no
authority mandating that this Court find that the proprietary-governmental function
distinction does not apply in the present case. Indeed, the Gates case, whereby the
Supreme Court of Texas recognized that contracts made by municipal corporations
in their proprietary capacity have been held to be governed by the same rules as
contracts between individuals, Gates, 704 S.W.2d at 739, has not been overturned
and still constitutes good law. The Third Court of Appeals held, post-Tooke, that in
the absence of a definitive answer from the Supreme Court, the Court would rely
on its own precedent, as well as the nearly unanimous opinions of its sister courts,
to conclude that the proprietary-governmental dichotomy applies to contract
claims. City of Georgetown, 413 S.W.3d at 810-11. While Tooke’s citation to
Gates could be read to mean that Gates did not expressly hold that the proprietary-
governmental dichotomy applies to contract claims, Tooke did not change the
common law or somehow call the holding of Gates into question. Id. at 812. Mr.
Hale urges the Court in the present case to adopt the holding in the City of
Georgetown, finding that the proprietary-governmental dichotomy applies in
contractual and quasi-contractual claims against a municipality. Not only is the
City subject to liability for its actions as a landlord generally, even the early state
of the record in this case reveals that it ejected Mr. Hale from his property after its
condition had been brought to the City’s attention, and then the City, after
12 assuming complete control over the premises, stood idly by and watched as the
Quonset hut type of hangar that it leased to Mr. Hale collapse, destroying over a
hundred thousand dollars of aircraft and aircraft related equipment and tooling.
(CR 1:59). The City then expects to escape all liability by asserting judicial
immunity for such careless and reckless acts. The law cannot allow such an
improvident and bizarre result as what the City seeks.
Prior to Tooke, the appellate courts unanimously applied the proprietary-
governmental dichotomy to contract claims. City of Georgetown, 413 S.W.3d at
811 (internal citations omitted). Following Tooke, several appellate courts have
assumed without deciding that the dichotomy continues to apply to contract claims.
At least one appellate court, the Thirteenth Court of Appels, has continued to
expressly apply the proprietary-governmental dichotomy to contract claims post-
Tooke. See Casso v. City of McAllen, No. 13-08-00618, 2009 Tex.App. LEXIS
2049, 2009 WL 781863, at *5-7 (Tex.App.—Corpus Christi Mar. 26, 2009, pet.
denied) mem. op.). As noted in the City of Georgetown, these opinions of the
various courts of appeals did not engage in any substantial analysis as to why the
dichotomy should be applied, perhaps because no such analysis was necessary.
City of Georgetown, 413 S.W.3d at 811. While Tooke brought the issue into
question, it did not suggest any principled reason why the proprietary-
governmental dichotomy should apply to tort claims, but not contract claims. Id.;
13 see also Tooke, 197 S.W.3d at 343-44. This dichotomy exists because when a
municipality does not act on behalf of the state, it does not have the state’s
immunity. City of Georgetown, 413 S.W.3d at 811. The underlying rationale is the
relationship, or lack thereof, between the municipality and the state, not the
relationship between the municipality and the party bringing suit. Id.; Posnainsky,
62 Tex. at 126-28. In the present case, the City’s real estate functions in owning
and leasing real property have no relationship with the state and are thus,
proprietary in nature.
The foundation of a bailment claim lies in contract. Sanroc Co. Int'l v.
Roadrunner Transp., Inc., 596 S.W.2d 320, 322 (Tex. Civ. App.—Houston [1st
Dist.] 1980, no writ). A bailment contract may be express or implied. State v.
$281,420.00 in U.S. Currency, 312 S.W.3d 547, 551 (Tex. 2010). Consequently,
the proprietary-governmental dichotomy should be applied to Mr. Hale’s claim for
bailment, as well as his quasi-contractual claims for promissory estoppel and
unjust enrichment.
The operation of an airport consists of the operation and management of the
runways and related facilities, with or without an air traffic control tower. (RR
2:11). The additional endeavor of real estate ownership, leasing and management is
not a necessary function of an airport, nor is it a function mandated by the State in
the operation of an airport. (RR 2:11). The real estate functions were undertaken by
14 the City voluntarily, and are separate and distinct from the operation of the Airport
itself. (RR 2:11). Like the municipality in Posnainsky, the City in the present case
owned and maintained the real estate properties for its “own advantage or
emolument.” Thus, it is not immune from suit for negligently maintaining those
properties. See Posnainsky, 62 Tex. at 131. The real estate functions of the City are
exactly the very definition of proprietary functions. The real estate functions
constitute an “exercise of power . . . voluntarily assumed—powers intended for
the private exchange and benefit of the locality and its inhabitants,” as such there is
no sufficient reason why it should be relieved from liability to suit and measure of
actual damage to which an individual or private corporation would be held. Id.; see
also City of Georgetown, 413 S.W.3d at 808-09.
Because the City was engaged in a proprietary function in the ownership and
leasing of real estate, sovereign immunity does not apply to Mr. Hale’s claims for
breach of contract, bailment, unjust enrichment and promissory estoppel.
Consequently, the trial court committed reversible error in finding that immunity
does apply in the present case. As a result, this Court should reverse the trial
court’s decision and remand the case for a trial on the merits.
III. A LEGISLATIVE WAIVER OF IMMUNITY IS NOT NECESSARY WHEN NO IMMUNITY EXISTS
When the City entered into the Lease with Mr. Hale, the City was engaged
in a proprietary function, and thus no immunity against Mr. Hale’s contractual and 15 quasi-contractual claims exists. In 2005, the Legislature enacted Subchapter I of
Chapter 271 of the Texas Local Government Code “to loosen the immunity bar” by
waiving immunity to suit for specific claims arising under written contracts with
governmental entities. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex.
Political Subdivisions Property/Casualty Joint Self-Insurance Fund, 212 S.W.3d
320, 326 (Tex. 2006). Section 271.152’s waiver of immunity was intended to
broaden, not narrow, the scope of contract claims that could be filed against cities.
For the specific types of contracts covered by Chapter 271, the waiver of immunity
applies regardless of whether the municipality is engaged in a proprietary or
governmental function. However, the statutory waiver scheme of Chapter 271 is
inapplicable in contract cases in which no immunity exists in the first place, i.e.,
when a city engages in a proprietary function.
Chapter 271 provides that a governmental entity authorized to enter into a
contract and that enters into a contract subject to this subchapter waives sovereign
immunity to suit for the purpose of adjudicating a claim for breach of the contract,
subject to the terms and conditions of this subchapter. Tex. Loc. Gov’t Code
§271.152. A “contract subject to this subchapter” is defined as: a written contract
stating the essential terms of the agreement for providing goods or services to the
local governmental entity that is properly executed on behalf of the local
governmental entity. Tex. Loc. Gov’t Code §271.151(2)(A).
16 It does not logically follow that a statute intended to broaden the scope of
contract claims that can be brought against a municipality, would at the same time,
completely abolish an entire class of claims which have never been subject to
immunity. (RR 2:16-17). Prior to Tooke, the appellate courts unanimously held
that immunity does not apply to contract claims involving a municipality’s
proprietary function. City of Georgetown, 413 S.W.3d at 811 (internal citations
omitted). Tooke does not change that precedent. Rather, Tooke, by its own terms,
assumed without deciding that the proprietary-governmental dichotomy applied to
contract claims and therefore, did not overrule any prior precedent. Id. at 812;
Tooke, 197 S.W.3d at 343. The underlying analysis in Tooke primarily considered
whether the phrase “plead and be impleaded” within the local government code
was a clear and unambiguous waiver of sovereign immunity. Tooke, 197 S.W.3d at
343. Indeed, the proprietary-governmental dichotomy concerns whether a
municipality has immunity in the first place, not whether it has been waived. City
of Georgetown, 413 S.W.3d at 812. Consequently, Tooke’s analysis of waiver of
immunity has little bearing on the proprietary-governmental dichotomy, and the
more relevant precedents are those cases addressing whether governmental
immunity exists in the first instance. Id.; see e.g., City of El Paso v. Heinrich, 284
S.W.3d 366, 371-72 (Tex. 2009); Nueces County v. San Patricio County, 246
S.W.3d 651, 652-53 (Tex. 2008).
17 In the present case, the City was engaged in a proprietary function in the
ownership and leasing of real estate, and thus, immunity does not apply. (RR 2:11).
Moreover, it was not necessary for the Legislature to provide a waiver of immunity
for contract and/or quasi-contractual claims where the governmental unit is acting
in a proprietary capacity, because there was no immunity to waive. (RR 2:16-17).
Because the City was engaged in proprietary functions, i.e., the ownership and
leasing of real estate, there is no immunity applicable to Mr. Hale’s claims for
breach of contract, bailment, unjust enrichment and promissory estoppel.
When Mr. Hale informed the City of the unreasonable and unsafe condition
of the hangar, the City, specifically Mr. Ronnie Ford on behalf of the City,
unequivocally instructed Mr. Hale to immediately vacate the premises and to stay
out of the Hangar. (CR 1:59; RR 2:19). Not only did the City forbid Mr. Hale from
taking any action to protect his property from the unreasonable risk of harm posed
by the deteriorated roof, the City did absolutely nothing to reduce or eliminate the
risk of harm to Mr. Hale. (CR 1:59). Mr. Hale was not afforded an opportunity to
remove his aircraft and personal property from the hangar until the destruction of
his personal property and work tools was essentially complete. (CR 1:59). The City
assumed complete command and control over the property when they ejected Mr.
Hale and all other occupants from the property. (CR 1:59). The City then barred
Mr. Hale from re-entering the property for weeks, allowing not only aircraft, but
18 sensitive aircraft grade equipment and tools to be exposed to the elements,
resulting in damage or a complete loss. (CR 1:59).
To allow the City to avoid liability for the egregious conduct demonstrated
in the present case goes against the spirit and intent of the doctrine of
governmental immunity. A City should not be allowed to voluntarily take on
proprietary functions, operate with conscious indifference to the rights, safety, or
welfare of others, and then escape all responsibility and liability due to its tenants
(and the public) under the doctrine of immunity. Indeed, the doctrine of sovereign
immunity does not give the City, or any other governmental unit, a “free pass” to
ignore its duties and obligations under the law and escape all responsibility for its
actions. Consequently, the trial court’s application of sovereign immunity to Mr.
Hale’s claims should be reversed and remanded for a trial on the merits.
IV. BECAUSE THE CITY WAS ENGAGED IN A PROPRIETARY FUNCTION, THE TEXAS TORT CLAIMS ACT DOES NOT APPLY.
Sovereign immunity protects the State, its agencies and officials, and
political subdivisions of the State from suit, unless immunity from suit has been
waived. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594
(Tex. 2001). The sovereign immunity of the State inures to the benefit of a
municipality insofar as the municipality engages in the exercise of governmental
functions, except when that immunity has been waived. See Fort Worth Indep. Sch.
19 Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000); City of Tyler v. Likes,
962 S.W.2d 489, 501 (Tex. 1997); see also City of Houston v. Rushing, 39 S.W.3d
685, 686 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (stating, “The City of
Houston, as a home-rule municipality, is generally immune from both suit and
liability in its governmental functions.”).
The Texas Tort Claims Act (“TCA”) establishes certain waivers of
governmental immunity. Likes, 962 S.W.2d at 494. The entity remains immune
unless waived by the TCA. Miranda, 133 S.W.3d at 225. If the City was
performing a proprietary function, however, the TCA does not apply. See City of
Corpus Christi v. Absolute Industries, 120 S.W.3d 1, 4 (Tex.App.—Corpus Christi
2001, pet. denied); City of El Paso v. Morales, No. 08-02-00484-CV, 2004 Tex.
App. LEXIS 7806, *26-27 (Tex. App.—El Paso Aug. 20, 2004, pet. denied). When
a municipality commits a tort while engaged in proprietary functions, it is liable to
the same extent as a private entity or individual. Tex. River Barges v. City of San
Antonio, 21 S.W.3d 347, 356 (Tex. App.—San Antonio 2000, pet. denied).
Under Section 101.0215 of the TCA, certain municipal functions are defined
as governmental and others as proprietary. See Tex. Civ. Prac. & Rem. Code
§101.0215. The Texas legislature has defined governmental functions as “those
functions that are enjoined on a municipality by law and are given it by the state as
part of the state's sovereignty, to be exercised by the municipality in the interest of
20 the general public . . . .” Tex. Civ. Prac. & Rem. Code §101.0215(a). Proprietary
functions are “those functions that a municipality may, in its discretion, perform in
the interest of the inhabitants of the municipality . . . .” Tex. Civ. Prac. & Rem.
Code §101.0215(b); see also Pike, 727 S.W.2d at 519 (proprietary function is one
performed by a city, in its discretion, primarily for the benefit of those within the
corporate limits of the city, rather than for use by the general public). A
municipality retains its immunity for activities which the legislature has defined as
governmental, except to the extent immunity is waived by acts, omissions, and
conditions as specified in the TCA. See Williams v. City of Midland, 932 S.W.2d
679, 682 (Tex.App.—El Paso 1996, no writ); Morales, 2004 Tex. App. LEXIS
7806 at *14-15.
Under Texas common law, determining whether a city is performed a
proprietary or governmental function has generally been evaluated by examining
whether the act performed by the city as the agent of the State in furtherance of
general law for the interest of the public at large, or whether it is performed by the
city, in its discretion, primarily for the benefit of those within the corporate limits
of the city, rather than for the use by the general public. See Pike, 727 S.W.2d at
519; Bailey, 972 S.W.2d at 192-93. The key difference between a proprietary and
governmental function is that the city functions in its governmental capacity when
it performs functions mandated by the State. Truong, 99 S.W.3d at 210.
21 In the present case, the City was engaged in a proprietary function in the
ownership and leasing of real estate, and thus, immunity does not apply. (RR 2:11).
Moreover, it was not necessary for the Legislature to provide a waiver of immunity
for tort claims where the governmental unit is acting in a proprietary capacity,
because there was no immunity to waive. (RR 2:16-17). Because the City was
engaged in proprietary functions, i.e., the ownership and leasing of real estate,
there is no immunity applicable to Mr. Hale’s tort claims for negligence, gross
negligence and premises defect.
Indeed, the operation of an airport consists of the operation and management
of the runways and air traffic control tower. (RR 2:11). The additional endeavor of
real estate ownership, leasing and management is not a necessary function of an
airport, nor is it a function mandated by the State in the operation of an airport.
(RR 2:11). The real estate functions were undertaken by the City voluntarily, and
are separate and distinct from the operation of the Airport itself. (RR 2:11). The
Lease Agreement in this case is particularly instructive in this regard in that Mr.
Hale leased the property at issue directly from The City of Bonham, rather than the
Airport itself (The City of Bonham Municipal Airport). (CR 1:12-13).
Like the municipality in Posnainsky, the City in the present case owned and
maintained the real estate properties for its “own advantage or emolument.” Thus,
it is not immune from suit for negligently maintaining those properties. See
22 Posnainsky, 62 Tex. at 131. There is nothing about the City’s real estate endeavors
that constitute “functions mandated by the State.” See Truong, 99 S.W.3d at 210.
When Mr. Hale informed the City of the unreasonable and unsafe condition
of the hangar, the City, specifically Mr. Ronnie Ford on behalf of the City,
unequivocally instructed Mr. Hale to immediately vacate the premises and to stay
out of the Hangar. (CR 1:59; RR 2:19). Not only did the City prevent Mr. Hale
from taking any action to protect his property from the unreasonable risk of harm
posed by the deteriorated roof, the City did absolutely nothing to reduce or
eliminate the risk of harm to Mr. Hale. (CR 1:59). The City assumed complete
command and control over the property when they ejected Mr. Hale and all other
occupants from the property. (CR 1:59). The City then barred Mr. Hale from re-
entering the property for weeks, allowing all sorts of aircraft and aircraft grade
equipment and tools to be exposed to the elements, either damaging it or losing it
completely. (CR 1:59).
The City must not be permitted to hide behind the veil of sovereign
immunity to escape liability for the egregious conduct presented in this case. The
City, in taking on the real estate function of owning, managing and leasing real
estate property for public use, has a responsibility to maintain those properties in a
good and habitable condition. The City, here, seeks to avoid that responsibility
simply because they are a municipality – the safety and welfare of its citizens be
23 damned. In essence, the City claims that it does not matter how atrocious its
conduct is, because it is untouchable. Such an argument goes against the very spirit
and intent of the Texas Tort Claims Act, as well as the entire basis for a waiver of
immunity.
Consequently, this Court should find that the City was engaged in a
proprietary function in owning, managing, and leasing real estate to the public. As
a result of that proprietary function, the City owed a duty of care and should be
held accountable for a breach of that duty, just as an individual or private
corporation would be under the facts of this case. Because the City was engaged in
a proprietary function, the Texas Tort Claims Act does not apply and there is no
sovereign immunity in this case. Thus, the decision of the trial court should be
reversed and the case remanded for a trial on the merits.
V. ALTERNATIVELY, EVEN IF THE TEXAS TORT CLAIMS ACT APPLIES TO THE PRESENT CASE, THE STATUTE PROVIDES A LIMITED WAIVER OF IMMUNITY UNDER THE FACTS OF THE PRESENT CASE.
Under the TCA, a municipality is liable for damages arising under certain
specified governmental functions, including airports, including when used for
space flight activities as defined by Section 100A.001. Tex. Civ. Prac. & Rem.
Code § 101.0215(a). Moreover, the TCA states that the proprietary functions of a
municipality do not include those governmental activities listed under Subsection
(a). Tex. Civ. Prac. & Rem. Code § 101.0215(c). Section 101.0215 lists numerous 24 functions of a city that are designated as governmental. Some courts have held that
all activities associated with the operation of one of the government functions
listed in section 101.0215(a) are governmental and cannot be considered
proprietary, regardless of the city's motive for engaging in the activity. See e.g.,
Tex. River Barges, 21 S.W.3d at 356-57) (city’s removal of barge company from
marina is included within government function of operating a marina and park
even if removal was motivated by desire to protect city’s profit by exclusive
contract with another barge company); City of Dallas v. Reata Constr. Corp., 83
S.W.3d 392, 395 (Tex. App.—Dallas 2002, pet. filed) (marking the location of
water main is encompassed by government function of “waterworks” and water
services). However, those cases are distinguishable in that the real estate function
of the City in the present case is separate and distinct from the operation of the
Airport. In fact, the Lease at issue in this case was entered by the City of Bonham
itself, rather than with the actual Airport. (CR 1:12-13). Indeed, the only necessity
to the operation of an airport is a runway and an air traffic control tower. There is
no mandate from the State, nor the Federal Aviation Administration, requiring the
owners and/or operators of airports own and/or lease real estate. Thus, the City’s
real estate functions are separate and distinct from its airport operations and are
25 The Tort Claims Act provides a limited waiver of immunity for injuries
caused by (1) use of publicly owned automobiles, (2) premises defects, and (3)
injuries arising out of conditions or use of property. Miranda, 133 S.W.3d 217, 225
(Tex. 2004) [emphasis added]; see also Tex. Civ. Prac. & Rem. Code § 101.021.
The TCA also waives immunity from suit for all claims for which it waives
liability. See id. at § 101.025; Morales, 2004 Tex. App. LEXIS 7806 at *14-15.
Liability for premises defects is implied under Section 101.021(2) because a
premises defect arises from a condition existing on real property. City of Midland
v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.—El Paso 2000, pet. dism’d w.o.j.); Lamar
Univ. v. Doe, 971 S.W.2d 191, 195 (Tex.App.—Beaumont 1998, no pet.); Perez v.
City of Dallas, 180 S.W.3d 906, 910 (Tex.App.—Dallas 2005, no pet.).
If a claim arises from a premise defect, the governmental unit generally
owes the claimant the same duty that a private person owes to a licensee on private
property. See Tex. Civ. Prac. & Rem. Code § 101.022(a); State Dep’t of Highways
v. Payne, 838 S.W.2d 235, 237 (Tex. 1992); State v. Tennison, 509 S.W.2d 560,
562 (Tex. 1974). However, the governmental entity owes the claimant the duty
owed to an invitee, if the claimant pays for the use of the premises, as is the case
here. See Payne, 838 S.W.2d at 237; Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 69-
70 (Tex.App.—Houston [1st Dist.] 2009, pet. denied). If a plaintiff is an invitee, an
owner is required to use ordinary care to reduce or eliminate an unreasonable risk
26 of harm created by a premises condition of which the owner is or reasonably
should be aware. Payne, 838 S.W.2d at 237; City of Galveston v. Albright, No. 14-
04-00072-CV, 2004 Tex. App. LEXIS 9693, *8-9 (Tex.App.—Houston [14th
Dist.] Nov. 2, 2004, no pet.). In other words, the premises owner or occupier has a
duty to keep the premises in a reasonably safe condition and to inspect the
premises to discover any latent defects and to make safe any defect or give
adequate warning. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983);
Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex. 1972). An invitee need
only prove that the owner or occupier knew or should have known of the condition.
Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 910 (Tex. App.—
Houston [14th Dist.] 2009, no pet.); City of Houston v. Cogburn, No. 01-11-00318-
CV, 2013 Tex. App. LEXIS 2827, *8 (Tex. App.—Houston [1st Dist.] Mar. 19,
2013, no pet.). Consequently, the City had a duty to keep the leased property in a
reasonably safe condition, and to inspect the property for defects—a duty it failed
to meet.
In a premises liability case, the plaintiff must establish (1) a legal duty owed
to the plaintiff, (2) breach of that duty, and (3) damages (4) proximately caused by
the breach. See Perez v. DNT Global Star, L.L.C., 339 S.W.3d 692, 700
(Tex.App.—Houston [1st Dist.] 2011, no pet.). As with any other negligence
action, a defendant in a premises liability case is liable only to the extent it owes
27 the plaintiff a legal duty. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex.
2008). As a rule, to prevail on a premises liability claim, a plaintiff must prove that
the defendant possessed—that is, owned, occupied, or controlled—the premises.
See Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex.
1999). Moreover, an invitee must establish the following elements to prevail on his
premises liability claim: (1) the premise owner or occupier had actual or
constructive knowledge of a condition; (2) the condition posed an unreasonable
risk of harm; (3) the owner or occupier did not exercise reasonable care to reduce
or eliminate the risk; and (4) the owner or occupier's failure to use such care
proximately caused the plaintiff's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d
97, 99 (Tex. 2000); Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 644
(Tex.App.—Houston [1st Dist.] 2005, pet. denied).
In the case of a premises liability claim, to establish a waiver of immunity a
plaintiff must comply with both §101.021 and §101.022(a). See Tex. Civ. Prac. &
Rem. Code §§ 101.021(2), 101.022(a); see e.g. Tennison, 509 S.W.2d at 561; City
of Del Rio v. Felton, No. 04-06-00091-CV, 2007 Tex. App. LEXIS 660, *8
(Tex.App.—San Antonio 2007, no pet.). Under Section 101.021(a), a
governmental unit is liable for damages proximately caused by the wrongful act or
omission or the negligence of an employee acting within the scope of employment
if (a) the damages arise from the operation or use of a motor vehicle or equipment;
28 and (b) the employee would be personally liable to the claimant according to Texas
law. Tex. Civ. Prac. & Rem. Code §101.021(a). A governmental unit is also liable
for damages caused by a condition or use of tangible personal or real property if
the governmental unit would, were it a private person, be liable to the claimant
according to Texas law. Tex. Civ. Prac. & Rem. Code §101.021(b) [emphasis
added]. Here, provided all elements of the claim were established at trial on the
merits, the City would absolutely be liable to Mr. Hale under the facts of this case.
Mr. Hale’s status as an invitee carries with it a greater duty of care by the
City. Indeed, the City is required to use ordinary care to reduce or eliminate an
unreasonable risk of harm created by a premises condition of which the owner is or
reasonably should be aware. Payne, 838 S.W.2d at 237. When Mr. Hale informed
the City of the unreasonable unsafe condition of the hangar, the City, specifically
Mr. Ronnie Ford, on behalf of the City, unequivocally instructed Mr. Hale to
immediately vacate the premises and to stay out of the Hangar. (CR 1:59). The
City forbid Mr. Hale from taking any action to protect his property from the
unreasonable risk of harm posed by the deteriorated roof, and did absolutely
nothing to reduce or eliminate the risk of harm to Mr. Hale. (CR 1:59). The City
assumed complete command and control over the property when they ejected Mr.
Hale and all other occupants from the property. (CR 1:59). The City then barred
Mr. Hale from re-entering the property for weeks, allowing the sensitive aircraft
29 grade equipment and tools to be exposed to the elements, resulting in damage or
total loss of the equipment. (CR 1:59). To allow the City to avoid liability for such
egregious conduct goes against the spirit and intent of the Texas Tort Claims Act.
In other words, a City should not be allowed to voluntarily take on proprietary
functions, such as the management and leasing of property, operate with conscious
indifference to the rights, safety, or welfare of others, and then escape all
responsibility and liability for its responsibilities and duties to its tenants (and the
public). Consequently, the decision of the trial court should be reversed in all
respects.
VI. THE TRIAL COURT’S FAILURE TO ALLOW MR. HALE THE OPPORTUNITY TO CONDUCT JURISDICTIONAL DISCOVERY AND AMEND HIS COUNTERCLAIM IS REVERSIBLE ERROR.
Sovereign immunity from suit defeats a trial court's subject matter
jurisdiction and thus is properly asserted in a plea to the jurisdiction. Tex. DOT v.
Jones, 8 S.W.3d 636, 637 (Tex. 1999); see also Hosner v. De Young, 1 Tex. 764,
769 (Tex. 1847) (recognizing as appropriate procedure the challenge of a court's
subject matter jurisdiction through a plea to the jurisdiction). The trial court must
determine at its earliest opportunity whether it has the constitutional or statutory
authority to decide the case before allowing the litigation to proceed. Austin &
N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 405 (Tex. 1903) (“There can be no
doubt that the courts of Texas must look to the Constitution of this state, the
30 enactments of the Legislature, and the common law for their authority to proceed .
. . .”).
Whether a court has subject matter jurisdiction is a question of law. Tex.
Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s
subject matter jurisdiction is a question of law reviewed de novo. Likewise,
whether undisputed evidence of jurisdictional facts establishes a trial court’s
jurisdiction is also a question of law. However, in some cases, disputed evidence of
jurisdictional facts that also implicate the merits of the case may require resolution
by the finder of fact. See Gates v. Pitts, 291 S.W. 948, 949 (Tex. Civ. App.-
Amarillo 1927, no writ); Gentry v. Bowser, 21 S.W. 569, 570 (Tex. Civ. App.—
Fort Worth 1893, no writ); see also Valentin v. Hosp. Bella Vista, 254 F.3d 358,
363 n.3 (1st Cir. 2001) (observing that in certain situations, the predicate facts can
be so inextricably linked to the merits of the controversy that the district court may
“defer resolution of the jurisdictional issue until the time of trial”).
When a plea to the jurisdiction challenges the pleadings, court must
determine if the pleader has alleged facts that affirmatively demonstrate the court’s
jurisdiction to hear the cause. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993). Courts construe the pleadings liberally in favor of
the plaintiff and look to the pleader’s intent. Id. If the pleadings do not contain
31 sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not
affirmatively demonstrate incurable defects in jurisdiction, the issue is one of
pleading sufficiency and the plaintiff should be afforded the opportunity to amend.
County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction
may be granted without allowing the plaintiff an opportunity to amend. Id.
In the present case, Mr. Hale requested additional time to conduct discovery
to determine the full extent of the wrongs committed by the City and the
opportunity to amend his counterclaims to include additional facts to affirmatively
demonstrate the trial court’s jurisdiction. Mr. Hale’s request was improperly
denied by the trial court. (RR 1:23).
Under the facts as presented, the City’s actions may give rise to intentional
tort claims, for which sovereign immunity does not attach. Additionally, Mr. Hale
believes the facts of this case may support a claim for a special defect, for which a
waiver of immunity has been provided by the Texas Tort Claims Act, particularly
in light of Mr. Hale’s status as an invitee upon the property at issue. No pointed
discovery was conducted in the present case.
Indeed, immunity is waived for the duty to warn of special defects. See State
v. Woollesen, 93 S.W.3d 910, 913 (Tex. App.—Austin 2002, no pet.). The
Legislature does not define special defect but likens it to conditions “such as
32 excavations or obstructions on highways, roads, or streets.” Tex. Civ. Prac. &
Rem. Code Ann. § 101.022(b); see also County of Harris v. Eaton, 573 S.W.2d
177, 178-80 (Tex. 1978) (construing “special defect” as including those defects of
the same kind or class as those expressly mentioned in the statute). In Denton
County v. Beynon, the court found that conditions can be special defects “only if
they pose a threat to the ordinary users of a particular roadway.” 283 S.W.3d 329,
331 (Tex. 2009) (citing Payne, 838 S.W.2d at 238 n.3). Whether a condition is a
special defect is a question of law. City of El Paso v. Bernal, 986 S.W.2d 610, 611
(Tex. 1999). While special defect claims have typically been brought in connection
with roadway defects, neither the Legislature, nor the Supreme Court of Texas has
expressly limited special defect claims as such.
The hangar leased by Mr. Hale was used to house Mr. Hale’s aircraft
maintenance business. (CR 1:59). Consequently, the property was open to the
general public – both inhabitants of the City of Bonham and those merely passing
through by virtue of their use of the Airport and Mr. Hale’s business. The
inherently unsafe structure of the building presented an unexpected and unusual
danger to the ordinary users of the property and presented an unnecessary risk to
anyone who entered the property.
The general elements of a claim based on a special defect are:(1) a condition
of the premises created an unreasonable risk of harm to the invitee; (2) the owner
33 knew or should have known of the condition; (3) the owner failed to exercise
ordinary care to protect the invitee from danger; and (4) the owner’s failure was a
proximate cause of injury to the invitee. Payne, 838 S.W.2d at 237; City of El Paso
v. Chacon, 148 S.W.3d 417, 425 (Tex. App.—El Paso 2004, pet. denied). Upon
information and belief, the facts of the present case support a claim for a special
defect.
Following the Incident giving rise to the present dispute, an examination of
the debris revealed that the apex bolts that held the top seam of the roof together
were extensively corroded, undersized, and apparently had not been inspected in
decades, making the hangar unsafe for occupancy and/or use. (CR 1:59-60). This
presented an unreasonably dangerous condition which posed an unreasonable risk
of harm to Mr. Hale. (CR 1:60). The City was aware of this condition, certainly
well in advance of a slow-motion collapse that transpired over days instead of
hours, yet did nothing to make the premises safe. (CR 1:60). Further discovery will
be required to more fully determine what other and further duties the City breached
in connection with the Hangar, including any inspections that might be required
under the City’s statutes. (CR 1:60).
Consequently, the trial court’s denial of the opportunity to conduct discovery
prior to its dismissal of Mr. Hale’s counterclaims and the denial of the opportunity
to amend his pleadings constitutes reversible error. Thus, as an alternative (or
34 addition) to the relief requested herein, Mr. Hale respectfully requests that the case
be remanded to the trial court to allow Mr. Hale the opportunity to conduct
discovery and amend his counterclaims.
35 PRAYER
WHEREFORE, PREMISES CONSIDERED, and as a result of the
foregoing, Mr. Hale respectfully requests that this Court find that the City was
acting in a proprietary capacity, and as such, is not protected from suit by
sovereign immunity. Mr. Hale further requests that that the orders of the trial court
dismissing Mr. Hale’s counterclaims be reversed and the case remanded to the trial
court for a trial on the merits. Alternatively, or in addition, to the requested relief,
Mr. Hale respectfully requests that the case be remanded to the trial court for
discovery and to allow Mr. Hale an opportunity to amend his counterclaims to
include additional facts to affirmatively demonstrate the trial court’s jurisdiction.
Mr. Hale further requests all such other and further relief, general or special, at law
or in equity, to which he may be justly entitled.
36 Respectfully submitted,
COATS &EVANS, P.C.
By: /s/ Gary L. Evans Gary Linn Evans State Bar No. 00795338 E-mail: evans@texasaviationlaw.com George Andrew Coats State Bar No. 00783846 E-mail: coats@texasaviationlaw.com P.O. Box 130246 The Woodlands, Texas 77393-0246 Telephone: (281) 367-7732 Facsimile: (281 367-8003
ATTORNEYS FOR APPELLANT SIDNEY B. HALE, JR.
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft Word and contains 8,611 words, as determined by the computer software's word- count function, excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Gary L. Evans Gary L. Evans
37 CERTIFICATE OF SERVICE
I certify that pursuant to Rule 21a of the Texas Rules of Civil Procedure a true and correct copy of the foregoing instrument has been delivered to all counsel of record on the 6th day of July, 2015.
Mr. Christopher S. Kilgore Via Electronic Filing and/or Dottie Sheffield Facsimile No. 972-532-6496 HELMS & KILGORE, PLLC 2201 Main Street, Suite 212 Dallas, Texas 75201 Telephone: 972-532-6484 Facsimile: 972-532-6496
ATTORNEYS FOR PLAINTIFF CITY OF BONHAM
38 APPENDIX
A1. Order of January 6, 2015 Granting Plaintiff’s Motion for Partial Summary Judgment (CR 1:119).
A2. Order of February 12, 2015 Granting Plaintiff’s Motion for Summary Judgment (CR 1:192).
A3. Order of Dismissal dated February 27, 2015 (CR 1:197).
A4. Texas Tort Claims Act, applicable provisions.
A5. Subchapter I, Chapter 271, Texas Local Government Code, applicable provisions.
A6. City of Georgetown v. Lower Colorado River Authority, 413 S.W.3d 803 (Tex.App.—Austin 2013, pet. dism’d).
A7. Plaintiff’s First Amended Petition for Declaratory Judgment (CR 1:24).
A8. Defendant’s Verified Original Answer (CR 1:51).
A9. Defendant’s Original Counterclaim (CR 1:57).
A10. Plaintiff’s Motion for Partial Summary Judgment (CR 1:68).
A11. Defendant’s Response to Plaintiff’s Motion for Partial Summary Judgment (CR 1:107).
A12. Plaintiff’s Motion for Summary Judgment (CR 1:120).
A13. Defendant’s Response to Plaintiff’s Motion for Summary Judgment (CR 1:172).
A14. Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for Summary Judgment (CR 1:182).
A15. Defendant’s Surreply to Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for Summary Judgment (CR 1:189). 39
Related
Cite This Page — Counsel Stack
Sidney B. Hale, Jr. v. City of Bonham, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sidney-b-hale-jr-v-city-of-bonham-texcrimapp-2015.